People v. Tomasello

• Decision Date: 23 July 1981
• Docket Number: Nos. 80-441,80-661,s. 80-441
• Citation: 98 Ill.App.3d 588,424 N.E.2d 785,54 Ill.Dec. 35
• Parties: , 54 Ill.Dec. 35 PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Jeanne TOMASELLO, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 785

424 N.E.2d 785

98 Ill.App.3d 588, 54 Ill.Dec. 35

PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Jeanne TOMASELLO, Defendant-Appellee.

Nos. 80-441, 80-661.

Appellate Court of Illinois, Second District.

July 23, 1981.

J. Michael Fitzsimmons, State's Atty., Robert L. Thompson, Barbara A. Preiner, Asst. State's Attys., Wheaton, for plaintiff-appellant.

George P. Lynch, Chicago, for defendant-appellee.

LINDBERG, Justice.

The State appeals from two orders of the Circuit Court of DuPage County which were entered in the prosecution of defendant, Jeanne Tomasello, for distribution of cocaine in violation of the Controlled Substances Act. (Ill.Rev.Stat.1975, ch. 56 1/2, par. 1401.) The trial court dismissed for lack of a speedy trial Counts 1 and 3 of indictment 75-4813-G and Count 1 of indictment 79 CF 1667. The trial court also granted the defendant's motion to strike the testimony of witnesses against her and exhibits admitted into evidence at the trial of Count 2 of indictment 75-4813-G. We granted leave to consolidate these issues on appeal.

Because this appeal involves a determination of whether the speedy trial term expired, a detailed factual statement is in order. On August 6, 1975, defendant was arrested and charged by complaint with unlawful delivery of a controlled substance on four separate occasions. The defendant's bail bond required her to appear before the Circuit Court of DuPage County on August 14, 1975. On that date, it appears that the defendant made a demand for trial, although there is no written or oral demand in the record before us. This omission is attributed to fragmenting of the record due to two prior appeals in this same prosecution which this court decided by orders entered under Supreme Court Rule 23. (See People v. Tomasello (1979), 73 Ill.App.3d 1110, 32 Ill.Dec. 867, 395 N.E.2d 1248; People v. Tomasello (1977), 49 Ill.App.3d 1129, 10 Ill.Dec. 744, 368 N.E.2d 230 (per curiam).) A preliminary hearing was held on September 16, 1975. On that date probable cause to hold the defendant for trial was found and defendant's attorney demanded trial. The transcript from those proceedings contains a reference to the earlier demand made by defendant on August 14, 1975:

"MR. ROCCO (defendant's attorney): Your Honor, on behalf of both (another person was named as a co-defendant in two of the four offenses) defendants I would demand trial.

THE COURT: In all cases, counsel?

MR. ROCCO: Yes, your Honor.

THE COURT: All right.

Will you give me a written Demand?

MR. ROCCO: Yes, your Honor.

MR. STOGSDILL (Assistant State's Attorney): May the record indicate that was already done on the 14th?

THE COURT: All right.

To be clear in the record, counsel, prepare a new Demand in each of the four cases.

MR. ROCCO: Yes, your Honor."

Thus there was a demand for trial on August 14, 1975, and the speedy trial term would then have expired 160 days thereafter, or approximately January 24, 1976. This assumes, of course, that no event intervened to toll the period. See discussion below.

On October 30, 1975, a four-count indictment was filed against defendant for four separate deliveries of cocaine to Agent Charles Doerr occurring during July 1975. This indictment was numbered 75-4813-G. Counts II and IV of this indictment charged Class I felonies; Counts I and III charged Class II felonies.

Arraignment was set for November 19, 1975, but on that day Mr. Edward Ward appeared on behalf of defense attorney Rocco and stated that defendant had not appeared as he had expected and he did not know her so as to be able to find her in the courthouse. The court asked the State if it wished to continue the matter. The State assented and the date was set for November 26, 1975. After that date there were two delays not relevant to our discussion because we note that if the delay of November 19, 1975 is attributed to defendant, then another 160 day term would end approximately May 6, 1976. (160 days after November 26, 1975.)

On February 25, 1976, the defendant's attorney failed to appear. The trial court set the cause for the next day. On February 26, 1976, the defendant's attorney was again absent and the trial court said:

"THE COURT: * * * there is no use pushing you people by having you come back every day. At least I got a call from his secretary, your attorney's secretary yesterday afternoon."

The Court then set the case down for March 3, 1976. Charging this delay to the defendant, the speedy trial term would then expire approximately August 13, 1976.

Following that, there were a number of continuances which the State attributes to the defendant. The latest of these occurred on April 14, 1976, due to the appearance of new counsel on behalf of defendant, Adam Bourgeois, and the fact that a pre-plea investigation report was requested by defendant. Finally, on June 1, 1976, the State amended Count 2 of indictment 75-4813-G to allege a Class 2 felony rather than a Class 1 felony and defendant pleaded guilty to Counts 1, 2, and 3 of that indictment. On June 23, 1976, defendant was sentenced to 2 to 5 years in the penitentiary for each count, sentences to be served concurrently, and the State nol-prossed Count 4 of the indictment. Defendant then filed a written demand for speedy trial. According to the State's brief, this is the only demand of record but, as noted above, there clearly were at least two prior demands on August 14, 1975 and September 16, 1975. Defendant filed a notice of appeal on July 2, 1976, but for nearly a year the appeal was not prosecuted.

On May 10, 1977, defendant's attorney withdrew and her attorney in this court, George Lynch, appeared. A late notice of appeal was filed and this court, in a per curiam opinion, remanded the case to the trial court to allow defendant to move to vacate her guilty plea. (People v. Tomasello (1977), 49 Ill.App.3d 1129, 10 Ill.Dec. 744, 368 N.E.2d 230.) The State admitted that defendant had not been admonished pursuant to Supreme Court Rule 605(b)(2). 73 Ill.2d R. 605(b)(2).

On remand, defendant filed a motion to vacate her plea and the motion was granted on September 21, 1977. Defendant entered pleas of not guilty to Counts 1 and 3. The State then moved to re-amend Count 2 of the indictment to again allege a Class 1 felony and to reinstate Count 4, which had previously been nol-prossed. These motions were denied and on November 14, 1977, the State filed a notice of appeal. Approximately one and one-half years later, this court decided the second appeal to arise from this case. We reversed the trial court's refusal to reinstate Count 2 and ordered that Count 2 be reinstated as a Class 1 felony, but affirmed the denial of the State's motion to reinstate Count 4. (People v. Tomasello (1979), 73 Ill.App.3d 1110, 32 Ill.Dec. 867, 395 N.E.2d 1248.) Our mandate was issued August 2, 1979.

At this juncture, we note the following. If we were to compute the speedy trial term for each count separately, an assumption defendant asks the court to make, then the terms for Counts 1 and 3 would begin to run anew from the date of our mandate after the defendant's appel, i. e., the first appeal. That date was October 5, 1977; thus, the terms would expire (160 days later) approximately March 15, 1978, unless the periods were tolled by the State's appeal on November 14, 1977, of the trial court's rulings on Counts 2 and 4. If the periods for all four counts were tolled by the State's appeal, then a new 160 day period would begin to run from the date of our mandate after the second appeal, i. e., August 2, 1979. The new period would terminate approximately January 12, 1980.

The case was placed on the trial call but the parties agreed to two continuances during this period. And, on September 4, 1979, the defense attorney orally and by written motion withdrew defendant's previous demand for trial. Examination of the record reveals no trial demands made subsequent to this date.

On September 27, 1979, the DuPage County Grand Jury returned an indictment against defendant for the act which had previously been the subject of Count 4 of the prior indictment 75-4813-G. It will be recalled that Count 4 had been nol-prossed and because the appellate court affirmed the trial court's refusal to reinstate the charge, a new indictment was returned. This second indictment is numbered 79 CF 1667.

On October 3, 1979, the defendant asked for a continuance to file motions and was given until November 5, 1979. On that date, defendant filed 6 motions instanter. On March 24, 1980, the trial court dismissed Counts 1 and 3 of indictment 75-4813-G and Count 1 of indictment 79 CF 1667 (also known as Count 4 of indictment 75-4813-G) for the State's failure to comply with the Speedy Trial Act. The State appeals from these dismissals.

Count 2 of indictment 75-4813-G was set for trial. The defendant waived a jury trial and trial commenced on June 25, 1980. After the State rested the trial court granted defendant's motion to strike testimony and suppress evidence on the ground that the State violated Ill.Rev.Stat.1977, ch. 111, par. 2701. The trial court then suspended the proceedings pursuant to section 114-12 of the Criminal Code (Ill.Rev.Stat.1979, ch. 38, par. 114-12) and the State also appeals that ruling.

I.

The State argues that the trial court erroneously dismissed Counts 1 and 3 of 75-4813-G and Count 1 of 79 CF 1667. For purposes of discussion, the dismissal of Counts 1 and 3 of 75-4813-G will be analyzed separately from the dismissal of Count 1 of 79 CF 1667.

The Illinois Criminal Code provides that a person on bail or recognizance shall be tried within 160 days from the date he demands trial, unless delay is occasioned by defendant or by an interlocutory appeal or by other exceptions not pertinent to this case. (Ill.Rev.Stat.1975, ch. 38, par. 103-5(b).) With respect to offenses committed on or after March 1, 1977 delay occasioned by the defendant only temporarily...